Rakesh Kumar Sharma vs State Of U P And 2 Others
2023 Latest Caselaw 5347 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - C No. - 3498 of 2023
 

 
Petitioner :- Rakesh Kumar Sharma
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Nigamendra Shukla,Anju Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1.Heard Nigamendra Shukla, learned counsel for petitioner and learned Standing Counsel.

2. Petitioner has declared himself to be a reputed person posted as Senior Tax Assistant at G.S.T. Office Noida and after his official work, he normally reaches his house situated in Village Bihara, P.S. Agauta, District-Bulandshahr at about 8 P.M. in the night, therefore, it was necessary for him to keep a licensed fire arm for his security and protection.

3. An F.I.R. was lodged against petitioner on 18.9.2017 for committing an offence under Sections 323, 504, 506 and 452 I.P.C. with specific allegation that petitioner along with co-accused entered into the house of a lady (complainant) at about 4 A.M. and not only assaulted her, but hurled abuses also. Petitioner has not disclosed present status of trial. However, considering the date of F.I.R. and since cartridges has not been brought on record, in all probability, trial must have crossed the stage of framing of charge.

4. On basis of involvement of petitioner in the aforesaid case, a notice was issued to him by licensing authority why not arms license be revoked, to which he submitted reply that till date he has not been convicted, therefore, merely on basis of lodging of an F.I.R., his arms license cannot be cancelled.

5. Petitioner was also directed to submit details of cartridges to which he replied that he has purchased 50 cartridges, out of which 34 cartridges are available and out of remaining 16 cartridges, six were used and 10 cartridges being damped were buried. However, he has failed to submit reasons for use of cartridges as well as failed to deposit empty cartridges. In these circumstances, since the petitioner was involved in a criminal case and was unable to give details of used cartridges as well as shell of used cartridges and any legally sustainable reason for buring 10 cartridges instead of returning it back, therefore, it was found that petitioner has violated conditions of arms license with allegation that petitioner has entered into the house of a lady and further assaulted her was found sufficient for subjective satisfaction of licensing authority to deem necessary for security of public peace and public safety to revoke arms licence of the petitioner. The appeal thereof was also rejected on same grounds.

6. Learned counsel for petitioner submits that petitioner has not misused his licensed arm and allegations against petitioner are still not proved and that allegations mentioned in F.I.R. are not sufficient to take a view that keeping a licensed arm with petitioner would be detrimental for public peace and public safety.

7. Learned counsel for petitioner has placed reliance upon various judgments of this Court in Satish Singh Vs. District Magistrate, Sultanpur & Ors, 2009 (4) ADJ 33, Ram Murti Madhukar Vs. District Magistrate, Sitapur, 1998 LawSuit (All) 1100, Indra Pratap @ Ram Pratap Vs. State of U.P. through Prin Secy Home Lko & Ors, 2019 LawSuit (All) 207, Ram Prasad Vs. Commissioner & Ors, 2020 0 Supreme (All) 104 and Writ-C No.31473 of 2019, Rajeev Kumar @ Monu Shukla decided on 14.9.2022, that mere pendency of a criminal case may not be a ground to revoke arms license as well as there must be a sufficient material to show that keeping a licensed fire arm would be detrimental to public peace and public safety and further that public peace and public safety has to be considered in its correct perspective. He has also placed reliance on a Constitution Bench judgement passed by Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Ors, 2017 (4) T.A.C. 673, that in case this Court takes a different view from above referred judgments, appropriate procedure would be to refer this matter to a Larger Bench.

8. Above submissions are opposed by learned Standing Counsel that petitioner was not only involved in a criminal case, but he has also failed to explain details of used cartridges, which is prima-facie a clear violation of conditions of arms license, therefore, there is no illegality in the impugned order. The subjective satisfaction of licensing authority was based on material, therefore, it cannot be interfered.

9. Heard learned counsel for parties and perused the record.

10. Petitioner is a Government Officer and has claimed that he requires arms license as he normally reaches his house after completing his official work in late night, which itself appears to be not a valid ground to keep an arms license.

11. Petitioner despite being claiming to be a very respected person has committed a prima-facie offence by entering into the house of a lady along with co-accused and not only hurled abusive languages, but assaulted her also, wherein after investigation, charge-sheet has been filed and trial is pending, therefore, there is more than prima-facie case against the petitioner.

12. Learned counsel for the petitioner has not been able to dispute that petitioner has failed to disclose reason of using cartridges as well as failed to produce shell of used cartridges and further he also miserably failed as to why he has buried 10 cartridges, though the correct procedure is to comply with due process of returning it back to the licensed arms shop.

13. Recently, this Court in Writ-C No.740 of 2023, Mahesh Kumar Tomar Vs. State of U.P. & Ors, decided on 17.2.2023, has dealt with similar issue, relevant paragraphs nos.6 to 8 of which are mentioned hereinafter:

6. Recently, this Court in Mahipal Singh vs. State of U.P. and others (Writ-C No.1080 of 2023), decided on 14.02.2023 has an occasion to consider the similar submissions wherein it has referred to its earlier judgment in Indrajeet Singh vs. State of U.P. and others, 2021(10) ADJ 471, wherein it has been held that:

16. The words "public peace and public order" are normally considered to maintain peace and order at public at large. However, there may be instances where though the immediate danger may be to an individual, but it may have threat to the public at large. For example a fire arm licensee entered inside the house of a neighbour and threatened him or undertook blank firing by licensed weapon or otherwise, though it may be itself be violative or not violative of conditions fire arm license, but this act is not only a threat to an individual, but is definitely likely to cause disturbance of public peace and public order to public at large, therefore, in these circumstances for security of public peace or for public order, the licensing authority may suspend or revoke the arms licence under Section 17 (3) of the Act, of 1959. Similarly, a person/licensee who is involved in a case of murder or attempt to murder or any offence affecting human body or any other serious offence, there may be likelihood of breach of public peace or public order.

17. The words used in Section 17 (3) (b) of the Act, 1959 is "deems it necessary for the security of the public peace or for public safety" i.e. in order to secure public peace or for public safety, the licensing authority if deems necessary, may suspend or revoke the licence. It is not necessary that actual disturbance of public peace or public safety may take place to revoke or suspend the arms licence. The licensing authority on the basis of material available, if deems necessary for security of public peace or for public safety may revoke the arms licence. Therefore, at this stage subjective satisfaction of the licensing authority comes into picture and if the licensing authority finds that due to certain act whether it is affecting to an individual or public at large, may for the security of public peace or for public safety, may suspend or revoke the arms licence. This is a precautionary measure, therefore, it is not necessary that actual disturbance of public peace or public safety may occur. Therefore, even the criminal antecedent of the licensee are very important factor for consideration for granting license. In these circumstances, even pendency of a criminal case involving serious offence may be sufficient to suspend or revoke the arms licence. Similarly, even after the acquittal, the nature of acquittal may be an important factor to consider whether there may be a likelihood of disturbance of public peace and safety especially in cases where the offences are against the State, offence against public tranquillity, offences affecting human body, offences affecting life, and sexual offences etc.

18. The licensing authority is in the field, therefore, is the best judge who can assess the situation on the basis of material which are before him. Such an assessment cannot be substituted by this Court which is no way connected or does not have any inkling of situations. This Court cannot undertake any exercise to determine the facts leading to the subjective satisfaction of the licencing authority on the basis of situation then existing, except there are material to show as to how the satisfaction is perverse or based on no material. (See Jagat Pal Singh Vs. State of U.P. 1997 (34) ACC 499).

19. There must be subjective satisfaction of the licensing authority that the licensee is not fit to continue holding of licence. If the licensing authority is satisfied of the fact that a continued existence of fire arms licence with a person charged with various offence may endanger security of public peace and public safety then revocation of licence under Section 17 cannot be said to arbitrary or without jurisdiction. (See, 1999 SCC Online Pat 206, (1999) 3 PLJR 203, Tej Narayan Singh Vs. State of Bihar and others)"

7. In order to consider rival submissions, I have carefully perused the allegations made in First Information Report that petitioner was arrested from an open place where he was found in possession of a country made firearm alongwith live cartridges. Division Bench of this Court in Sheo Prasad Misra (supra), while remanding the matter back for fresh consideration has stated that firearm license cannot be cancelled on ground that some reports has been lodged against petitioner and there must be a finding that it was necessary to cancel licence for security of public peace or for public safety i.e. allegations in First Information Report can be considered by Licensing Authority to arrive a subjective satisfaction that facts and circumstances of particular case, it was deem necessary for security of public peace or for public safety to revoke firearm license.

8. It is well settled that firearm license is a privilege and it does not fall in the category of Constitutional or Fundamental Right as held by Full Bench of this Court in Kailash Nath vs. State, 1985 AWC 493 (FB)."

14. The outcome of above discussion is that the petitioner was not only involved in a criminal case where despite declaring himself to be a reputed person as well as Government employee, he not only entered into the house of a lady, misbehaved with her, but also assaulted her as well as he failed to comply with the conditions of arms license in respect of submitting details of cartridges, therefore, it is a case where prima-facie mandatory conditions of arms license are violated as well as petitioner is involved in a above referred case, therefore, licensing authority in his subjective satisfaction based on material considered that allowing petitioner to keep arms license would be detrimental to public peace and public safety.

15. Now Court proceeds to deal with submission of learned counsel for the petitioner in respect of referring the matter to Larger Bench.

16. In National Insurance Company (supra), Constitution Bench has held that when there are conflicting authorities, Court may without taking upon itself to decide whether it should follow one Bench decision or other, matter may be referred for decision of Full Bench. However, in the present case, situation is different.

17. This Court has considered the issue of Sheo Prasad Misra (supra) and interpreted that in the said judgment it has not been stated that merely on basis of lodging of F.I.R., arms license can never be cancelled as well as that while cancelling arms license, licensing authority shall also refer grounds of subjective satisfaction that it was deemed necessary for security of public peace and public safety to revoke arms license.

18. This Court has not taken absolutely contrary view, rather clarified the position that it is not a thumb rule that on basis of a merely criminal case, arms license can never be revoked, nor in absence of misuse of arms license, arms license cannot be revoked for security of public peace and public safety in respect of an individual person, therefore, this Court is not bound to refer the matter to a larger Bench and further clarified by way of an hypothetical example that if a person having an arms license enters into house of a neighbour and assaults him with 'Lathi' and during investigation an offence was found to be prima-facie proved at the stage of framing of charge i.e. the case is found to be more than prima-facie, where it would itself be a reason to revoke the arms license. This Court is of the view that though petitioner has disturbed peace and safety of an individual, however, there is more than likelihood that he can repeat such incident, therefore the importance of word 'security' came into consideration that such person may not repeat such incident and the Legislature has carefully choosen the word 'for the security of public peace and public safety', it has not used the word 'public order'. For the purpose of public peace and public safety, an individual cannot be held guilty this has been discussed by this Court in Indrajeet Singh (supra).

19. A reputation of a person is a very important factor while granting an arms license for considering whether he can continue with arms license or not.

20. Intention of Legislature is to prevent any such incident which may occur, therefore, subjective satisfaction of licensing authority is also in furtherance of this object.

21. Outcome of above discussion is that there is no illegality in the impugned order therefore, prayers made in this writ petition are rejected.

22. Accordingly, this writ petition is dismissed. However, this Court takes a very serious note that petitioner despite being a Government Officer was not only involved in a criminal activity, but has also violated conditions of arms license, therefore, matter is referred to appointing authority to take a decision as to why not disciplinary proceedings be initiated against petitioner.

Order Date :- 17.2.2023

SB